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Yadua Island (Fiji) Ltd v iTaukei Land Trust Board [2020] FJHC 621; HBC72.2020 (7 August 2020)

IN THE HIGH COURT OF FIJI AT SUVA

CIVIL JURISDICTION

Civil Action No. 72 of 2020

IN THE MATTER OF THE PROPERTY LAW ACT

AND IN THE MATTER OF AN APPLICATION under section 105(2)

by lessee for relief against forfeiture of lease

BETWEEN

YADUA ISLAND (FIJI) LIMITED a limited liability company having its

registered office at 51-55 Foster Road, Walu Bay Suva.

PLAINTIFF

AND

iTAUKEI LAND TRUST BOARD a statutory body having its

registered office at 431 Victoria Parade, Suva.

DEFENDANT

Counsel : Mr Singh A with Ms Prasad S. for the Plaintiff

Ms Vokanavanua Q for the Defendant

Mr Tuifagalele N for the Interested Party

Date of Hearing : 30^th July 2020

Date of Ruling : 07^th August 2020

RULING

(On the Application for Joinder of a Party)

[1] The plaintiff instituted these proceedings by Originating Summons seeking the following orders:

1. An order by the court for relief by way of reinstatement of the Native Lease No. 28062 being Lot 1 SO 5580 together with the variation No. 819722 lease granting relief to the plaintiff against the purported forfeiture of the aforesaid lease by the defendant lessor on such terms and conditions as the Court considered appropriate.
2. An injunction restraining the defendant from exercising or further exercising its rights as lessor pertaining to the purported forfeiture of the lease aforesaid or interfering with the plaintiff’s possession pending the hearing and determination of the application for relief.

[2] On 20^th March 2020 a summons was filed pursuant to Order 15 rule 6 of the High Court Rules 1988 seeking to have YAVUSA LEWEIMOTU TRUST added as a party to these proceedings.

[3] Order 15 rule 6(2)of the High Court Rules 1988 provides:

Subject to the provisions of this rule, at any stage of the proceedings in any cause or matter the Court may on such terms as it thinks just and either of its own motion or on application-

(a) order any person who has been improperly or unnecessarily made a party or who has for any reason ceased to be a proper or necessary party, to cease to be a party;
(b) order any of the following persons to be added as a party, namely-
(i) any person who ought to have been joined as a party or whose presence before the Court is necessary to ensure that all matters in dispute in the cause or matter may be effectually and completely determined and adjudicated upon, or
(ii) any person between whom and any party to the cause or matter there may exist a question or issue arising out of or relating to or connected with any relief or remedy which in the opinion of the Court it would be just and convenient to determine as between him and that party as well as between the parties to the cause or matter.

[4] The defendant informs court that it has no objection in adding YAVUSA LEWEIMOTU TRUST as a party.

[5] In the affidavit in support it is averred that the property in issue was given to the plaintiff for the purposes of tourism on 14^th December 2006 and since the commencement of the lease until now the plaintiff has failed to develop the land. In the affidavit in support it is averred further that the plaintiff has failed to pay the balance of the initial lease premium consideration.

[6] The plaintiff came before this court seeking the reinstatement of the lease which means there is not lease between the plaintiff and the defendant in respect of the subject property.

[7] The argument of the learned counsel for the party sought to be added is that once the lease expires or cancelled the ownership reverts back to the native owners.

[8] Section 4(1) of the iTaukei Lands Trust Act 1940 provides:

The control of all native land shall be vested in the Board and all such land shall be administered by the Board for the benefit of the Fijian owners.

[9] It is clear from the above provisions that the defendant controls and administers the native lands for the benefit of the owners. Therefore on cannot say that they have no interest in the matter. Any loss caused by lessees will directly affect the rights of the owners.

[10] The plaintiff’s position is that they could not develop the land for the reason that the defendant did not approve the plans. The defendant by its letter dated 13^th December 2018 has alleged that the plaintiff breached Clause 2(e) of the lease which reads as follows:

“To commence construction on or before the end of 30^th day of November 2018 of the Tourist Resort in accordance with the plans as approved in writing by the lessor and to complete construction of the tourist facility on or before the 30the day of June 2020”.

[11] It appears from the affidavit evidence before this court that the plaintiff and the defendant have been complaining against each other and nothing has been done on the property.

[12] Finally die to this tug of war between the plaintiff and the defendant the native owners of the land would suffer.

[13] Therefore, it is nothing but fair to allow the YAVUSA LEWEIMOTU TRUST to be added as a party.

[14] For the above reasons the court makes the following orders.

ORDERS

1. It is ordered that the YAVUSA LEWEIMOTU TRUST be added as a party to these proceedings.
2. There will be no order for costs.
   

Lyone Seneviratne

JUDGE

07^th August 2020